Published: Wed, 07 Mar 2018
Children and Their Welfare
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or Parallelewelten.net
The Children Act 1989 was the result of a comprehensive review of the law as it affected children, and now encompasses almost the whole of the civil law in that area with the exception of that which relates to adoption or education. It largely replaced a variety of earlier statutes, responded to public concern over child abuse (which in a few well-publicised cases had led to the child’s death, and in others to the removal of children from their homes on doubtful evidence), and acknowledged the growing emphasis on children’s rights as set out in the Convention on the Rights of the Child.
In essence, the Act instructs the courts in cases concerning the upbringing of children to ask themselves three questions:
- Are there “family proceedings” before the court?
- What orders are available to the court in the circumstances?
- Should the court make an order, and if so, in what terms?
The Act then provides guidance as to the correct answers to these questions. The main principles guiding the courts in their dealings with children (which for this purpose, according to s.105(1), includes anyone under 18) are set out in Part I of the Act, and in s.1 in particular.
Children Act 1989 s.1
- When a court determines any question with respect to (a) the upbringing of a child, or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.
- In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
- In the circumstances mentioned in subsection (4), a court shall have regard in particular to
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding),
- his physical, emotional and educational needs,
- the likely effect on him of any change in his circumstances,
- his age, sex, background and any characteristics of his which the court considers relevant,
- any harm which he has suffered or is at risk of suffering,
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs,
- the range of powers available to the court under this Act in the proceedings in question.
- The circumstances are that (a) the court is considering whether to make, vary or discharge a section 8 order [that is, a residence, , specific issue or prohibited steps order], and the making, variation or discharge of the order is opposed by any party to the proceedings, or (b) the court is considering whether to make, vary or discharge an order under Part IV [that is, a care or supervision order or similar].
- Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
- The child’s welfare is thus the “paramount consideration” in most cases concerning the child’s upbringing, just as it has always been the “golden thread” running through the wardship jurisdiction. This principle governs the making of care and supervision orders, the various “section 8” orders such as residence orders, orders, specific issue orders and prohibited steps orders, and a number of other incidental matters.
Lee v Lee (1983) 127 SJ 696, CA
An unmarried couple M and W were joint tenants of a council house, but their relationship became strained. While W was in hospital, her daughter D by a previous relationship went to live with her grandmother, while their son S stayed in the family home with M. When W left hospital she took S to live with a friend but sought an ouster order against M so that she could return to the family home where there would be room for D as well. The Court of Appeal said W should have the order she sought: in cases such as this all relevant factors (including the children’s welfare) were to be taken into account, and it would be just and reasonable to make the order.
Wilde v Wilde  2 FLR 83, CA
H and W were granted a decree absolute but proceedings for ancillary relief were still pending. W sought an ouster so that she could remain in the family home with the children, and the Court of Appeal said the judge had discretion to grant such an order where it was appropriate. The fact of dissolution did not exclude the courts’ power to intervene in the interests of the children.
O v L (Blood tests)  2 FLR 930, CA
Following separation, H sought an order for with their three-year-old daughter but W (now for the first time) claimed D had been fathered by another man and sought an order for blood tests to support her claim. The judge refused such an order and W’s appeal failed: the relationship between H and D was good, and continued would be in D’s best interests regardless of any genetic link.
Re B (Change of surname)  1 FLR 791, CA
Following her separation from M and her marriage to H, a woman W sought leave to change the names of her children BB, then aged 16, 14 and 12. The children themselves wished to change: they had a poor relationship with their father M and used his name only for official purposes; they were generally called by H’s name at school. The judge refused leave and W’s appeal failed: the Court of Appeal said it would not be in BB’s interests, whatever their wishes, to sever their remaining links with their father.
Re C  2 FLR 43, Brown P
A three-month-old baby C had suffered from meningitis; she now had severe brain damage and no hope of recovery. The judge granted leave to discontinue artificial ventilation, since all relevant parties were agreed that it was no longer in C’s best interests to sustain her body functions.
Re A (Children) (2000) Times 10/10/00, CA
“Siamese twins” Jodie and Mary were joined in such a way that Jodie’s heart and lungs were providing oxygenated blood for both; medical opinion broadly agreed that both would die in three to six months – or possibly slightly more – if nothing was done. Doctors sought the leave of the court to separate the twins, giving Jodie a good chance of a fairly “normal” life but causing the immediate death of Mary. The twins’ parents opposed the application for religious reasons. The Court of Appeal affirmed Johnson J and gave leave for the operation to proceed. Ward LJ referred to s.1(1) of the Children Act 1989 and the requirement that the child’s welfare be the paramount consideration. In the instant case, it was clear that Jodie’s welfare requried that the twins be separated, while Mary’s welfare (there being no doubt that she was a separate human being whose life was valuable in spite of her poor brain function) required that they should not. Faced with this logical dilemma to which Parliament had provided no solution, the judge concluded that the only solution was to choose the lesser of two evils and find the least detrimental alternative. The parents’ wishes were an important consideration, but the children’s welfare was paramount.
The “welfare principle” is not paramount, however, where the child’s upbringing is merely incidental to some other dispute: in such cases the child’s welfare is merely one among a number of considerations, none of which necessarily outweighs any other. Adoption disputes are of particular relevance in this context, and disputes relating to maintenance after divorce are also outside the scope of s.1; even the Child Support Agency is not governed by the welfare principle.
The meaning of the principle
According to Hardy-Boys J, a New Zealand judge, ‘welfare’ is an all-encompassing word. It includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained, but even more important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child’s own character, personality and talents.
Re T & E (Conflicting interests)  1 FLR 581, Times 29/12/94, Wall J
Half-sisters T and E were in foster care, and the local authority sought to free them for adoption. In E’s case there was no opposition, but T’s natural father F sought to revoke the care order to have T live with him and his new family. The judge found it was in T’s best interests to go to her father but in E’s best interests for both girls to be placed for adoption together. Where an application concerned two or more children each with paramount interests those interests have to be balanced, but here only T was technically the subject of proceedings and her interests therefore prevailed.
The welfare checklist
There is no formal definition of welfare in the Act, but s.1(3) sets out a list of factors to which the court must have particular regard in deciding what the child’s welfare requires. The list is not exhaustive, neither are the factors in order of importance or (necessarily) of equal importance: it is a checklist to assist the court in arriving at its decision. These factors must be considered where the court is considering a contested s.8 order, a care order, a supervision or education supervision order, or an order relating to with a child in care.
The child’s wishes
The first consideration (in the list but not necessarily in importance) is the ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding. The weight given to the child’s wishes depends on the age and maturity of the child, the nature of the decision to be made, and (to some extent) the judge’s own views. In some cases the child’s views have been disregarded as a mere reflection of some adult’s, but there is perhaps a slowly growing recognition that children – particularly teenage children – are individuals with minds of their own and opinions entitled to respect.
Re DW (Custody)  Fam Law 17, CA
Following divorce, F and M both remarried; the girl G lived with M and the boy B with F. Some time later M sought custody of B, but B (now 10 and “mature for his age”) said he would prefer to stay with his stepmother SM (now separated from F), who had brought him up for the past eight years. The judge awarded custody to M, and SM’s appeal failed: B’s own wishes were outweighed by the blood tie and the fact that SM (although very loving and competent) would have been a “single parent”.
Williamson v Williamson  2 FLR 146, CA
Following divorce, M was given custody of the three children. After three years, custody of the eldest child (a boy then 13) was transferred to F, and after a further six years the two younger girls (then 14 and 13) voted with their feet, turning up at F’s home and refusing to go back to M. The judge awarded formal custody to M but day-to-day care and control to F, and F appealed. Allowing the appeal, the Court of Appeal said split orders of this sort are generally undesirable. The welfare officer recommended the girls be brought up by F, and there was no reason to think the girls themselves would change their minds. They gave cogent reasons for wanting to stay with F, and that was enough.
M v M (Custody appeal)  1 WLR 404, CA
Following divorce, a 12-year-old girl G went to stay with her father F and then expressed a wish to remain with him permanently, resisting even the suggestion that her mother M should have access. M was granted interim custody, care and control, but F’s appeal succeeded. The judge had failed to take account of G’s adamant opposition to such an order, which was significant in spite of G’s youth, and had been “plainly wrong” to order a handover within four weeks. Interim custody, care and control would be given to F.
Re P (Education)  1 FLR 316, Times 1/10/91, CA
Following divorce, it was agreed that P should live with F, and a “family decision” was taken that he would go to a certain independent boarding school. When P subsequently reached 13, F said he could not afford the school fees (which under the divorce settlement he would have had to pay) and proposed sending P to a day school instead. M obtained an order for P to be enrolled at the boarding school, but F’s appeal was allowed. P himself had now expressed a wish to go to the local school so as to spend more time with F, and he was a sensible and intelligent boy whose wishes were based on sound reasons. In family proceedings concerning children, the court has a duty to listen and pay respect to their wishes and views, particularly when they are older.
B v B (Interviews and listing arrangements)  2 FLR 489, CA
This case is discussed in more detail later. Wall J said the judge below had quite properly refused to promise the children he would not tell their parents what they said, if they expressed any preference concerning their upbringing. The discretion to interview children to ascertain their views should be exercised with caution, and it must be made clear to the children that it is the court, not the child himself, who is responsible for the ultimate decision.
Where it is proposed to change a child’s surname (usually to match his stepfather’s) it is sometimes necessary to obtain the consent of the court. In such cases the court must clearly take into account what the child himself wishes to be called, but the child’s wishes do not always prevail even where he is well into teenage and the view strongly held.
Re B (Change of surname)  1 FLR 791, CA
This case is considered above. Children now aged 16, 14 and 12 wanted to change their official surname but the judge refused leave and M’s appeal was dismissed. The Court of Appeal said the judge’s order clearly contradicted the children’s wishes, but it would not be in their best interests to weaken their remaining link with their father (with whom they had had no for some five years). It would be wrong to make a new order (especially a or residence order) in the teeth of the children’s opposition, but here it was merely leaving in place an existing order made at the time of the divorce, and that was different.
The child’s needs
The next consideration is the child’s physical, emotional and educational needs. The first and third are fairly straightforward, and there are few cases of interest.
May v May  1 FLR 325, CA
On divorce F and M were awarded joint custody of their two sons (8 and 6), but care and control was given to F (with generous access to M). M’s appeal failed: although the judge had not said expressly that he felt F’s slightly stricter regime more appropriate than M’s very liberal approach (which was not in itself unreasonable), he had clearly taken into account the parties’ respective capacity to provide the boys with educational stimulus and discipline, and was certainly not “blatantly wrong” in the decision he had reached.
Emotional needs are a matter of more interest. The court usually tries to keep siblings together, and to ensure that a child remains with a parent with whom he has a particularly close bond: family relationships are particularly important where the dispute is between a parent and a third party.
Adams v Adams  FLR 768, CA
Following divorce, G (aged 10) went to live with M and her new partner (whose affair had led to the divorce), and B (aged 11) went to live with F. F then applied successfully for custody of G as well, and M’s appeal failed. The judge had considered the advantages to G of being with her mother as she approached puberty, but had decided these were outweighed by her distress at being separated from B. Dunn LJ said obiter that children should not be put under pressure to choose between their parents: it is often kinder for the court to make the decision for them.
Allington v Allington  FLR 586, CA
After divorce, a girl G of 18 months was initially left with F, but because F was often away evangelising G spent two or three days a week in M’s home too. After some ten weeks M sought care and control; the judge refused, but M’s appeal succeeded. G needed the continuity of care that M could provide, especially given her age.
C v C (Custody of children)  2 FLR 291, CA
On divorce, custody of B (aged 4) was initially awarded to F and custody of G (aged 7) to M, with access to the other in each case. M’s appealed successfully and was awarded custody of both children: young brothers and sisters should where possible be brought up together for the sake of the emotional support they can give one another.
Re K (Wardship: adoption)  1 FLR 57, CA
This case is discussed above. The Court of Appeal refused an adoption order where the natural mother M sought the child’s return a few months after handing him over (as she thought) temporarily. The question was not whether the prospective adopters would be able to give the child a better home, but whether the natural family was so unsuitable that the child’s interests demanded the displacement of their parental responsibility. In this case, M clearly wanted the child back and had cared properly for her other children: it would not be in K’s interests to deprive her of the chance to grow up with her natural family.
Re B (Custody)  1 FLR 137, CA
Following divorce and F’s release from prison, B11 and G7 went to live with F and B5 and B4 with M. M subsequently applied for custody of all four children, but admitted she had never really got on with B11 (who wanted to stay with F), leaving only G7 (whose wishes were unclear) in dispute. The judge awarded custody of G7 to M, but F appealed with new evidence of G7’s wish to remain with him. The Court of Appeal allowed his appeal and remitted the case to the County Court for prompt rehearing in the light of this new evidence.
At one time the courts (like most people) took the view that young children and girls should remain with their mothers, and that boys over a certain age should be with their fathers. Social and judicial attitudes have gradually changed, however, and although small babies are usually left with their mothers each case nowadays is considered on its merits.
Re S (Custody)  2 FLR 388, CA
M walked out leaving F with a girl G, aged 2. F was subsequently awarded custody, but M kept G after an access visit and subsequently obtained from a judge a custody order in her favour. Allowing F’s appeal and remitting the case to the family proceedings court for a new hearing, the Court of Appeal said G’s welfare was the first and paramount consideration: there is no legal presumption in favour of one parent over another, even though in practice a small child is usually better off with its mother, and the judge was wrong to prefer his discretion over the magistrates’.
Re A (Custody)  2 FLR 394, CA
M walked out with a girl G12, leaving three boys and a girl G6 with F. In a later dispute the judge awarded custody of G6 to M, but F’s appeal was allowed. It is natural for young children to be with their mothers, but this is a consideration and not a presumption, especially where (as here) mother and child had been separated for some time. G6’s best interests would be served by her staying where she was now settled.
Re W  2 FLR 332, Times 22/5/92, CA
An unmarried couple agreed before their child W was born that it would be looked after by F, who employed a nanny for the purpose. About three weeks after the birth M applied for a residence order for C to live with her; the judge ordered the status quo to remain pending a welfare report, but M’s appeal was allowed. Balcom,be LJ said although there is no presumption of law that a child of any age is better off with one parent than another, the court could not disregard the natural position and the rebuttable presumption of fact that a baby’s best interests lie with its mother.
B v B (Residence order)  1 FLR 139, CA
After M and F separated and F moved out, their three sons B15, B12 and B8 shuttled between the two homes. The judge ordered that B12 and B8 should live with M, but B12 preferred to live with F and the judge subsequently amended his order accordingly, ordering that F should make no further application in respect of B8 without leave of the court. Allowing F’s appeal in part, Butler-Sloss LJ said it is unusual to separate siblings but the judge had acted within his discretion. However, the power to forbid applications without leave interferes with the citizen’s right of access to the courts and should be sparingly used: F had not acted at all improperly and should not be restrained in this way.
Re K (Residence order) (1999) Times 8/1/99, CA
Following divorce, the judge ordered that B2 should live with his father F (who worked from home using a computer) rather than his mother M (who was unemployed). Affirming the order, Cazalet J said the days have gone when mothers could assume they were the ones who should care for children. Hirst LJ agreed: M appeared to be unreliable and untrustworthy, and if she was given the child there was a likelihood of her returning to India with him and denying F any further .
Change in circumstances
The court must also consider the likely effect on the child of any change in his circumstances, and is generally reluctant to disturb the status quo unless there are compelling reasons for so doing. This does not prevent the court’s ordering a change where the status quo is itself very recent, however, or where it is unsatisfactory, and status quo arguments carry hardly any weight where one parent has kidnapped the child or wrongfully sought to prevent him from maintaining a relationship with the other.
Jenkins v Jenkins (1980) 1 FLR 148, CA
H and W separated and the children remained with W, but H snatched G9 on an access visit and took her to his mother’s home. W sought interim custody pending a divorce settlement, but the judge refused to make any order until a welfare report had been prepared. Allowing W’s appeal, Brandon LJ said the court should express the gravest displeasure when one parent snatches a child from the other, and should order its immediate return.
B v B (Custody)  FLR 166, CA
M (then aged 18) walked out leaving their 2-year-old child with F, but two years later she sought custody. The judge awarded her care and control: F was currently looking after the child because he was unemployed and on benefit, but if he were to get a full-time job (which was his primary responsibility) he would be unable to continue doing so. F’s appeal succeeded: the Court of Appeal said the judge had erred in giving weight to F’s duty to find work instead of relying on benefits. His principal and only consideration should have been the welfare of the child.
Allington v Allington  FLR 586, CA
This case is discussed above. The sporadic nature of F’s care so far, and its uncertainty for the future, were major factors in the court’s decision to award custody to M instead.
Re E (Access)  1 FLR 368, CA
M gave birth shortly after separating from F, and subsequently married a Jehovah’s Witness. M sought to deny F any further access to the child, and said she would not cooperate with any access order the court made. The magistrates made an order for 2 hours’ access per month (amended to three hours quarterly by the judge) and M appealed. Dismissing her appeal and restoring the magistrates’ original order, the Court of Appeal said the fact that M’s attitude to F’s visits might distress the child could not alter the fact that those visits would be in the child’s best interests (inter alia, by giving him a broader view of the world).
The court must have regard to the child’s age, sex, background and any characteristics of his which the court considers relevant. The relevance (or not) of race has been quite controversial, particularly in relation to fostering and adoption, and a number of cases have considered whether religious differences might also be of importance.
Re P (Wardship: surrogacy)  2 FLR 421, Arnold P
This case is discussed above. Awarding custody to the natural mother, the judge said the children’s welfare was the first and paramount consideration, and the surrogacy agreement was irrelevant except insofar as it might reflect on the fitness of the parties (which in this case it did not). He therefore balanced the material and ethnic advantages of life with the “employing” couple against the bonding that had already occurred with the natural mother, and came down on the side of the latter.
Re P  1 FLR 96, CA
A mixed-race child in care was placed with a white foster-mother FM. When FM sought to adopt, the local authority opposed her application because of its “same race” adoption policy (though at that time no racially similar adopters were available) and the judge refused FM the order she sought. Dismissing FM’s appeal, the Court of Appeal said the judge was not “plainly wrong” even though the advantages of continuity and stability pointed the other way.
Re T (Custody: religious upbringing) (1975) 2 FLR 239, CA
F and M separated (still living in the same house), and when M joined the Jehovah’s Witnesses, F sought custody of their three younger daughters. The judge awarded care and control to F, on the grounds that if given to M they would be excluded from ordinary social life. The Court of Appeal said the judge had not given enough weight to the satisfactory way W was currently raising the girls. Her beliefs were not immoral or socially obnoxious, and a creed that forbade birthday parties and other frivolity was not inherently wrong. They therefore awarded custody to M, but with generous access to F (including birthdays and Christmas), and subject to a condition that M would permit blood transfusions should they become necessary.
Hewison v Hewison (1977) 7 Fam Law 207, CA
F and M were Exclusive Brethren, forced to marry in their teens; twelve years later they had three children. M left the sect and the children remained with F in his parents’ home. F was granted a divorce because of M’s adultery, but M was subsequently granted custody and F’s appeal failed. The judge said the disruption caused by the change in lifestyle would be outweighed by the greater social and educational freedom the children would have in M’s Baptist environment.
Re P (Residence order: child’s welfare) (1999) Times 11/5/99, CA
A child P was born into an Orthodox Jewish family, but was placed with Christian foster parents at the age of 17 months because of her parents’ illness. Three years later her parents sought her return, citing inter alia the importance of P’s being brought up in her own religion. Wall J found that P was now very strongly attached to her foster parents and would be likely to suffer emotional harm if removed from them; he therefore refused the parents’ application and ordered that they should not make any further residence applications without the leave of the court. The parents’ appeal failed: Butler-Sloss LJ said the court’s primary concern is the child’s welfare: her natural religious and cultural heritage are relevant but not paramount considerations.
Risk of harm
The court must consider any harm which the child has suffered or is at risk of suffering. This is not limited to physical cruelty and sexual abuse – though both are obviously relevant – but includes any impairment of the child’s physical or psychological health and development.
Wright v Wright (1980) 2 FLR 276, CA
F was a Jehovah’s Witness and M a member of the Church of England. M left home taking a girl G5 with her, and was subsequently granted custody. F sought access, but refused to give an undertaking not to indoctrinate G5 in his faith. The judge refused F’s application and F’s appeal was dismissed: even if M’s opposition was an over-reaction, the conflict between the two sets of parental beliefs could damage G5.
Re B & G (Custody) (1985) 6 FLR 134, Latey J
Scientologists M and F divorced and married new partners. M left the sect and sought custody of their children (aged 10 and 8), arguing they should not be brought up in the sect. The judge agreed and awarded care and control to M with access to F. Scientology is immoral, socially obnoxious, corrupt, sinister and dangerous, aiming to capture and brainwash impressionable young people. The children had been with F for the past five years, but the risks presented by the religious environment outweighed the advantages of leaving them where they were.
Re R (Child abuse: access)  1 FLR 206, CA
An unmarried couple separated leaving the children with M. There was evidence of sexual abuse by F but he was not prosecuted. F sought access, and the judge ordered supervised access four times a year. M’s appeal was allowed: having found (even on a balance of probabilities) that F had been guilty of abuse, the judge had been “plainly wrong” to allow continued access. The very limited access he proposed would be of no benefit to the children.
C v C (Child abuse: access)  1 FLR 462, Latey J
Following divorce, care and control of the young children was given to M with access to F. Suspicions then arose that F had sexually abused the eldest girl G6, not for his own gratification but in thoughtless horseplay. The judge said that since F was now aware of the inappropriateness of his behaviour, his access should continue subject to supervision.
H v H (Child abuse: access)  1 FLR 212, CA
Following divorce, there was evidence that F had seriously abused his daughter G10, but he was not prosecuted because of the la
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